PART
I. MEDIATOR QUALIFICATIONS
Rule
10.100. General Qualifications
(a) County
Court Mediators. For certification a mediator of county court matters
must be certified as a circuit court or family mediator or:
(1) complete
a minimum of 20 hours in a training program certified by the supreme court;
(2) observe
a minimum of 4 county court mediation conferences conducted by a court-certified
mediator and conduct 4 county court mediation conferences under the supervision
and observation of a court-certified mediator; and
(3) be
of good moral character.
(b) Family
Mediators. For certification a mediator of family and dissolution of marriage
issues must:
(1) complete
a minimum of 40 hours in a family mediation training program certified by the
supreme court;
(2) have
a master's degree or doctorate in social work, mental health, or behavioral
or social sciences; be a physician certified to practice adult or child psychiatry;
or be an attorney or a certified public accountant licensed to practice in any
United States jurisdiction; and have at least 4 years practical experience in
one of the aforementioned fields or have 8 years family mediation experience
with a minimum of 10 mediations per year;
(3) observe
2 family mediations conducted by a certified family mediator and conduct 2 family
mediations under the supervision and observation of a certified family mediator;
and
(4) be
of good moral character.
(c) Circuit
Court Mediators. For certification a mediator of circuit court matters,
other than family matters, must:
(1) complete
a minimum of 40 hours in a circuit court mediation training program certified
by the supreme court;
(2) be
a member in good standing of The Florida Bar with at least 5 years of Florida
practice and be an active member of The Florida Bar within 1 year of application
for certification; or be a retired trial judge from any United States jurisdiction
who was a member in good standing of the bar in the state in which the judge
presided for at least 5 years immediately preceding the year certification is
sought;
(3) observe
2 circuit court mediations conducted by a certified circuit mediator and conduct
2 circuit mediations under the supervision and observation of a certified circuit
court mediator; and
(4) be
of good moral character.
(d) Dependency
Mediators. For certification a mediator of dependency matters, as defined
in Florida Rules for Juvenile Procedure 8.290(a) must:
(1) complete
a supreme court certified dependency mediation training program as follows:
(A)
40 hours if the applicant is not a certified family mediator
or is a certified family mediator who has not mediated at least 4 dependency
cases; or
(B) 20
hours if the applicant is a certified family mediator who has mediated at least
4 dependency cases; and
(2)
have a master's degree or doctorate in social work,
mental health, behavioral sciences or social sciences; or be a physician licensed
to practice adult or child psychiatry or pediatrics; or be an attorney licensed
to practice in any United States jurisdiction; and
(3) have
4 years experience in family and/or dependency issues or be a licensed mental
health professional with at least 4 years practical experience or be a supreme
court certified family or circuit mediator with a minimum of 20 mediations;
and
(4) observe
4 dependency mediations conducted by a certified dependency mediator and conduct
2 dependency mediations under the supervision and observation of a certified
dependency mediator; and
(5)
be of good moral character.
(e) Referral
for Discipline. If the certification or licensure necessary for any person
to be certified as a family or circuit mediator is suspended or revoked, or
if the mediator holding such certification or licensure is in any other manner
disciplined, such matter shall be referred to the Mediator Qualifications Board
for appropriate action pursuant to rule 10.800.
(f) Special
Conditions. Mediators who have been duly certified as circuit court or
family mediators before July 1, 1990, shall be deemed qualified as circuit court
or family mediators pursuant to these rules. Certified family mediators who
have mediated a minimum of 4 dependency cases prior to July 1, 1997, shall be
granted temporary certification and may continue to mediate dependency matters
for no more than 1 year from the time that a training program pursuant to subdivision
(d)(1)(B) is certified by the supreme court. Such mediators shall be deemed
qualified to apply for certification as dependency mediators upon successful
completion of the requirements of subdivision (d)(1)(B) and (d)(5) of this rule.
Rule
10.110 Good Moral Character
(a) General
Requirement. No person shall be certified by this Court as a mediator
unless such person first produces satisfactory evidence of good moral character
as required by rule 10.100.
(b) Purpose. The primary purpose of the requirement of good moral character is to ensure
protection of the participants in mediation and the public, as well as to safeguard
the justice system. A mediator shall have, as a prerequisite to certification
and as a requirement for continuing certification, the good moral character
sufficient to meet all of the Mediator Standards of Professional Conduct set
out in rules 10.200-10.690.
(c) Initial
Certification. The following shall apply in relation to determining the
good moral character required for mediator certification:
(1) The
applicant's good moral character may be subject to inquiry when the applicant's
conduct is relevant to the qualifications of a mediator.
(2) A
person who has been convicted of a felony shall not be eligible for certification
until such person has received a restoration of civil rights.
(3) A
person who is serving a sentence of felony probation shall not be eligible for
certification until termination of the period of probation.
(4) In
assessing whether the applicant's previous conduct demonstrates a present lack
of good moral character the following factors shall be relevant:
(A) the
extent to which the conduct would interfere with a mediator's duties and responsibilities;
(B) the
area of mediation in which certification is sought;
(C) the
factors underlying the conduct;
(D) the
applicant's age at the time of the conduct;
(E) the
recency of the conduct;
(F) the
reliability of the information concerning the conduct;
(G) the
seriousness of the conduct as it relates to mediator qualifications;
(H) the
cumulative effect of the conduct or information;
(I) any
evidence of rehabilitation;
(J) the
applicant's candor during the application process; and
(K) disbarment
or suspension from any profession.
PART
II. STANDARDS OF PROFESSIONAL CONDUCT
Rule
10.200 Scope and Purpose
These
Rules provide ethical standards of conduct for certified and court-appointed
mediators. They are intended to both guide mediators in the performance of their
services and instill public confidence in the mediation process. The public's
use, understanding, and satisfaction with mediation can only be achieved if
mediators embrace the highest ethical principles. Whether the parties involved
in a mediation choose to resolve their dispute is secondary in importance to
whether the mediator conducts the mediation in accordance with these ethical
standards.
Committee
Notes
2000
Revision. In early 1991, the Florida Supreme Court Standing Committee
on Mediation and Arbitration Rules was commissioned by the Chief Justice to
research, draft and present for adoption both a comprehensive set of ethical
standards for Florida mediators and procedural rules for their enforcement.
To accomplish this task, the Committee divided itself into two sub-committees
and, over the remainder of the year, launched parallel programs to research
and develop the requested ethical standards and grievance procedures.
The
Subcommittee on Ethical Standards began its task by searching the nation for
other states or private dispute resolution organizations who had completed any
significant work in defining the ethical responsibilities of professional mediators.
After searching for guidance outside the state, the subcommittee turned
to Florida's own core group of certified mediators for more direct and firsthand
data. Through a series of statewide public hearings and meetings, the subcommittee
gathered current information on ethical concerns based upon the expanding
experiences of practicing Florida certified mediators. In May of 1992, The "Florida
Rules for Certified and Court Appointed Mediators" became effective.
In
the years following the adoption of those ethical rules, the Committee observed
their impact on the mediation profession. By 1998, several other states and
dispute resolution organizations initiated research into ethical standards for
mediation which also became instructive to the Committee. In addition, Florida's
Mediator Qualifications Advisory Panel, created to field ethical questions from
practicing mediators, gained a wealth of pragmatic experience in the application
of ethical concepts to actual practice that became available to the Committee.
Finally, The Florida Mediator Qualifications Board, the disciplinary body for
mediators, developed specific data from actual grievances filed against mediators
over the past several years, which also added to the available body of knowledge.
Using
this new body of information and experience, the Committee undertook a year
long study program to determine if Florida's ethical rules for mediators would
benefit from review and revision.
Upon
reviewing the 1992 ethical Rules, it immediately became apparent to the Committee
that reorganization, renumbering, and more descriptive titles would make the
Rules more useful. For that reason, the Rules were reorganized into four substantive
groups which recognized a mediator's ethical responsibilities to the "parties,"
the "process," the "profession" and the "courts." The intent of the Committee
here was to simply make the Rules easier to locate. There is no official significance
in the order in which the Rules appear; any one area is equally important as
all other areas. The Committee recognizes many rules overlap and define specific
ethical responsibilities which impact more than one area. Clearly, a violation
of a rule in one section may very well injure relationships protected in another
section.
Titles
to the Rules were changed to more accurately reflect their content. Additionally,
redundancies were eliminated, phrasing tightened, and grammatical changes made
to more clearly state their scope and purpose.
Finally,
the Committee sought to apply what had been learned. The 2000 revisions are
the result of that effort.
Rule
10.210 Mediation Defined
Mediation
is a process whereby a neutral and impartial third person acts to encourage
and facilitate the resolution of a dispute without prescribing what it should
be. It is an informal and non-adversarial process intended to help disputing
parties reach a mutually acceptable agreement.
Rule
10.220 Mediator's Role
The
role of the mediator is to reduce obstacles to communication, assist in the
identification of issues and exploration of alternatives, and otherwise facilitate
voluntary agreements resolving the dispute. The ultimate decision-making authority,
however, rests solely with the parties.
Rule
10.230 Mediation Concepts
Mediation
is based on concepts of communication, negotiation, facilitation, and problem-solving
that emphasize:
(a) self
determination;
(b) the
needs and interests of the parties;
(c) fairness;
(d) procedural
flexibility;
(e) confidentiality;
and
(f) full
disclosure.
Rule
10.300 Mediator's Responsibility to the Parties
The
purpose of mediation is to provide a forum for consensual dispute resolution
by the parties. It is not an adjudicatory procedure. Accordingly, a mediator's
responsibility to the parties includes honoring their right of self-determination;
acting with impartiality; and avoiding coercion, improper influence, and conflicts
of interest. A mediator is also responsible for maintaining an appropriate demeanor,
preserving confidentiality, and promoting the awareness by the parties of the
interests of non-participating persons. A mediator's business practices should
reflect fairness, integrity and impartiality.
Committee
Notes
2000
Revision. Rules 10.300 - 10.380 include a collection of specific ethical
concerns involving a mediator's responsibility to the parties to a dispute.
Incorporated in this new section are the concepts formerly found in Rule
10.060 (Self Determination); Rule 10.070 (Impartiality/Conflict of Interest);
Rule 10.080 (Confidentiality); Rule 10.090 (Professional Advice); and Rule 10.100
(Fees and Expenses). In addition, the Committee grouped under this heading ethical
concerns dealing with the mediator's demeanor and courtesy, contractual relationships,
and responsibility to non-participating persons.
Rule
10.310 Self-Determination
(a) Decision-making. Decisions made during a mediation are to be made by the parties. A mediator
shall not make substantive decisions for any party. A mediator is responsible
for assisting the parties in reaching informed and voluntary decisions while
protecting their right of self-determination.
(b) Coercion
Prohibited. A mediator shall not coerce or improperly influence any party
to make a decision or unwillingly participate in a mediation.
(c) Misrepresentation
Prohibited. A mediator shall not intentionally or knowingly misrepresent
any material fact or circumstance in the course of conducting a mediation.
(d) Postponement
or Cancellation. If, for any reason, a party is unable to freely exercise
self-determination, a mediator shall cancel or postpone a mediation.
Committee
Notes
2000
Revision. Mediation is a process to facilitate consensual agreement between
parties in conflict and to assist them in voluntarily resolving their dispute.
It is critical that the parties' right to self-determination (a free and informed
choice to agree or not to agree) is preserved during all phases of mediation.
A mediator must not substitute the judgment of the mediator for the judgment
of the parties, coerce or compel a party to make a decision, knowingly allow
a participant to make a decision based on misrepresented facts or circumstances,
or in any other way impair or interfere with the parties' right of self-determination.
While
mediation techniques and practice styles may vary from mediator to mediator
and mediation to mediation, a line is crossed and ethical standards are violated
when any conduct of the mediator serves to compromise the parties' basic right
to agree or not to agree. Special care should be taken to preserve the party's
right to self-determination if the mediator provides input to the mediation
process. See Rule 10.370.
On
occasion, a mediator may be requested by the parties to serve as a decision-maker.
If the mediator decides to serve in such a capacity, compliance with this request
results in a change in the dispute resolution process impacting self-determination,
impartiality, confidentiality, and other ethical standards. Before providing
decision-making services, therefore, the mediator shall ensure that all parties
understand and consent to those changes. See Rules 10.330 and 10.340.
Under
subdivision (d), postponement or cancellation of a mediation is necessary if
the mediator reasonably believes the threat of domestic violence, existence
of substance abuse, physical threat or undue psychological dominance are present
and existing factors which would impair any party's ability to freely and willingly
enter into an informed agreement.
Rule
10.320 Nonparticipating Persons
A
mediator shall promote awareness by the parties of the interests of persons
affected by actual or potential agreements who are not represented at mediation.
Committee
Notes
2000
Revision. Mediated agreements will often impact persons or entities not
participating in the process. Examples include lienholders, governmental agencies,
shareholders, and related commercial entities. In family and dependency mediations,
the interests of children, grandparents or other related persons are also often
affected. A mediator is responsible for making the parties aware of the potential
interests of such non-participating persons.
In
raising awareness of the interests of non-participating persons, however, the
mediator should still respect the rights of the parties to make their own decisions.
Further, raising awareness of possible interests of related entities should
not involve advocacy or judgments as to the merits of those interests. In
family mediations, for example, a mediator should make the parents aware of
the children's interests without interfering with self-determination or advocating
a particular position.
Rule
10.330 Impartiality
(a) Generally. A mediator shall maintain impartiality throughout the mediation process.
Impartiality means freedom from favoritism or bias in word, action, or appearance,
and includes a commitment to assist all parties, as opposed to any one individual.
(b) Withdrawal
for Partiality. A mediator shall withdraw from mediation if the mediator
is no longer impartial.
(c) Gifts
and Solicitation. A mediator shall neither give nor accept a gift, favor,
loan, or other item of value in any mediation process. During the mediation
process, a mediator shall not solicit or otherwise attempt to procure future
professional services.
Committee
Notes
2000
Revision. A mediator has an affirmative obligation to maintain impartiality
throughout the entire mediation process. The duty to maintain impartiality arises
immediately upon learning of a potential engagement for providing mediation
services. A mediator shall not accept or continue any engagement for mediation
services in which the ability to maintain impartiality is reasonably impaired
or compromised. As soon as practical, a mediator shall make reasonable inquiry
as to the identity of the parties or other circumstances which could compromise
the mediator's impartiality.
During
the mediation, a mediator shall maintain impartiality even while raising questions
regarding the reality, fairness, equity, durability and feasibility of proposed
options for settlement. In the event circumstances arise during a mediation
that would reasonably be construed to impair or compromise a mediator's impartiality,
the mediator is obligated to withdraw.
Subdivision
(c) does not preclude a mediator from giving or accepting de minimis gifts or
incidental items provided to facilitate the mediation.
Rule
10.340 Conflicts of Interest
(a) Generally. A mediator shall not mediate a matter that presents a clear or undisclosed
conflict of interest. A conflict of interest arises when any relationship between
the mediator and the mediation participants or the subject matter of the dispute
compromises or appears to compromise the mediator's impartiality.
(b) Burden
of Disclosure. The burden of disclosure of any potential conflict of interest
rests on the mediator. Disclosure shall be made as soon as practical after the
mediator becomes aware of the interest or relationship giving rise to the potential
conflict of interest.
(c) Effect
of Disclosure. After appropriate disclosure, the mediator may serve if
all parties agree. However, if a conflict of interest clearly impairs a mediator's
impartiality, the mediator shall withdraw regardless of the express agreement
of the parties.
(d) Conflict
During Mediation. A mediator shall not create a conflict of interest during
the mediation. During a mediation, a mediator shall not provide any services
that are not directly related to the mediation process.
Committee
Notes
2000
Revision. Potential conflicts of interests which require disclosure include
the fact of a mediator's membership on a related board of directors, full or
part time service by the mediator as a representative, advocate, or consultant
to a mediation participant, present stock or bond ownership by the mediator
in a corporate mediation participant, or any other form of managerial, financial,
or family interest by the mediator in any mediation participant involved in
a mediation. A mediator who is a member of a law firm or other professional
organization is obliged to disclose any past or present client relationship
that firm or organization may have with any party involved in a mediation.
The
duty to disclose thus includes information relating to a mediator's ongoing
financial or professional relationship with any of the parties, counsel, or
related entities. Disclosure is required with respect to any significant past,
present, or promised future relationship with any party involved in a proposed
mediation. While impartiality is not necessarily compromised, full disclosure
and a reasonable opportunity for the parties to react are essential.
Disclosure
of relationships or circumstances which would create the potential for a conflict
of interest should be made at the earliest possible opportunity and under circumstances
which will allow the parties to freely exercise their right of self-determination
as to both the selection of the mediator and participation in the mediation
process.
A
conflict of interest which clearly impairs a mediator's impartiality is not
resolved by mere disclosure to, or waiver by, the parties. Such conflicts occur
when circumstances or relationships involving the mediator cannot be reasonably
regarded as allowing the mediator to maintain impartiality.
To
maintain an appropriate level of impartiality and to avoid creating conflicts
of interest, a mediator's professional input to a mediation proceeding must
be confined to the services necessary to provide the parties a process to reach
a self-determined agreement. Under subdivision (d), a mediator is accordingly
prohibited from utilizing a mediation to supply any other services which do
not directly relate to the conduct of the mediation itself. By way of example,
a mediator would therefore be prohibited from providing accounting, psychiatric
or legal services, psychological or social counseling, therapy, or business
consultations of any sort during the mediation process.
Mediators
establish personal relationships with many representatives, attorneys, mediators,
and other members of various professional associations. There should be
no attempt to be secretive about such friendships or acquaintances, but disclosure
is not necessary unless some feature of a particular relationship might reasonably
appear to impair impartiality.
Rule
10.350 Demeanor
A
mediator shall be patient, dignified, and courteous during the mediation process.
Rule
10.360 Confidentiality
(a) Scope. A mediator shall maintain confidentiality of all information revealed
during mediation except where disclosure is required by law.
(b) Caucus. Information obtained during caucus may not be revealed by the mediator
to any other mediation participant without the consent of the disclosing party.
(c) Record
Keeping. A mediator shall maintain confidentiality in the storage and
disposal of records and shall not disclose any identifying information when
materials are used for research, training, or statistical compilations.
Rule
10.370 Professional Advice Or Opinions
(a) Providing
Information. Consistent with standards of impartiality and preserving
party self-determination, a mediator may provide information that the mediator
is qualified by training or experience to provide.
(b) Independent
Legal Advice. When a mediator believes a party does not understand or
appreciate how an agreement may adversely affect legal rights or obligations,
the mediator shall advise the party of the right to seek independent legal counsel.
(c) Personal
or Professional Opinion. A mediator shall not offer a personal or professional
opinion intended to coerce the parties, decide the dispute, or direct a resolution
of any issue. Consistent with standards of impartiality and preserving party
self-determination however, a mediator may point out possible outcomes of the
case and discuss the merits of a claim or defense. A mediator shall not offer
a personal or professional opinion as to how the court in which the case has
been filed will resolve the dispute.
Committee
Notes
2000
Revision (previously Committee Note to 1992 adoption of former rule 10.090).
Mediators who are attorneys should note Florida Bar Committee on Professional
Ethics, formal opinion 86-8 at 1239, which states that the lawyer-mediator should
"explain the risks of proceeding without independent counsel and advise the
parties to consult counsel during the course of the mediation and before signing
any settlement agreement that he might prepare for them."
2000
Revision. The primary role of the mediator is to facilitate a process
which will provide the parties an opportunity to resolve all or part of a dispute
by agreement if they choose to do so. A mediator may assist in that endeavor
by providing relevant information or helping the parties obtain such information
from other sources. A mediator may also raise issues and discuss strengths and
weaknesses of positions underlying the dispute. Finally, a mediator may help
the parties evaluate resolution options and draft settlement proposals. In providing
these services however, it is imperative that the mediator maintain impartiality
and avoid any activity which would have the effect of overriding the parties' rights of self-determination. While mediators may call upon their own qualifications
and experience to supply information and options, the parties must be given
the opportunity to freely decide upon any agreement. Mediators shall not utilize
their opinions to decide any aspect of the dispute or to coerce the parties
or their representatives to accept any resolution option.
While
a mediator has no duty to specifically advise a party as to the legal ramifications
or consequences of a proposed agreement, there is a duty for the mediator to
advise the parties of the importance of understanding such matters and giving
them the opportunity to seek such advice if they desire.
Rule
10.380 Fees and Expenses
(a) Generally. A mediator holds a position of trust. Fees charged for mediation services
shall be reasonable and consistent with the nature of the case.
(b) Guiding
Principles in Determining Fees. A mediator shall be guided by the following
general principles in determining fees:
(1) Any
charges for mediation services based on time shall not exceed actual time spent
or allocated.
(2) Charges
for costs shall be for those actually incurred.
(3) All
fees and costs shall be appropriately divided between the parties.
(4) When
time or expenses involve two or more mediations on the same day or trip, the
time and expense charges shall be prorated appropriately.
(c) Written
Explanation of Fees. A mediator shall give the parties or their counsel
a written explanation of any fees and costs prior to mediation. The explanation
shall include:
(1) the
basis for and amount of any charges for services to be rendered, including minimum
fees and travel time;
(2) the
amount charged for the postponement or cancellation of mediation sessions and
the circumstances under which such charges will be assessed or waived;
(3) the
basis and amount of charges for any other items; and
(4) the
parties' pro rata share of mediation fees and costs if previously determined
by the court or agreed to by the parties.
(d) Maintenance
of Records. A mediator shall maintain records necessary to support charges
for services and expenses and upon request shall make an accounting to the parties,
their counsel, or the court.
(e) Remuneration
for Referrals. No commissions, rebates, or similar remuneration shall
be given or received by a mediator for a mediation referral.
(f) Contingency
Fees Prohibited. A mediator shall not charge a contingent fee or base
a fee on the outcome of the process.
Rule
10.400 Mediator's Responsibility to the Mediation Process
A
mediator is responsible for safeguarding the mediation process. The benefits
of the process are best achieved if the mediation is conducted in an informed,
balanced and timely fashion. A mediator is responsible for confirming that mediation
is an appropriate dispute resolution process under the circumstances of each
case.
Committee
Notes
2000
Revision. Rules 10.400 - 10.430 include a collection of specific ethical
concerns involved in a mediator's responsibility to the mediation process. Incorporated
in this new section are the concepts formerly found in rule 10.060 (Self-Determination),
rule 10.090 (Professional Advice); and rule 10.110 (Concluding Mediation). In
addition, the Committee grouped under this heading ethical concerns dealing
with the mediator's duty to determine the existence of potential conflicts,
a mandate for adequate time for mediation sessions, and the process for adjournment.
Rule
10.410 Balanced Process
A
mediator shall conduct mediation sessions in an even-handed, balanced manner.
A mediator shall promote mutual respect among the mediation participants throughout
the mediation process and encourage the participants to conduct themselves in
a collaborative, non-coercive, and non-adversarial manner.
Committee
Notes
2000
Revision. A mediator should be aware that the presence or threat of domestic
violence or abuse among the parties can endanger the parties, the mediator,
and others. Domestic violence and abuse can undermine the exercise of self-determination
and the ability to reach a voluntary and mutually acceptable agreement.
Rule
10.420 Conduct of Mediation
(a) Orientation
Session. Upon commencement of the mediation session, a mediator shall
describe the mediation process and the role of the mediator, and shall inform
the mediation participants that:
(1)
mediation is a consensual process;
(2)
the mediator is an impartial facilitator without authority to impose a resolution
or adjudicate any aspect of the dispute; and
(3)
communications made during the process are confidential, except where disclosure
is required by law.
(b) Adjournment or Termination. A mediator shall:
(1)
adjourn the mediation upon agreement of the parties;
(2)
adjourn or terminate any mediation which, if continued, would result in unreasonable
emotional or monetary costs to the parties;
(3)
adjourn or terminate the mediation if the mediator believes the case is unsuitable
for mediation or any party is unable or unwilling to participate meaningfully
in the process;
(4)
terminate a mediation entailing fraud, duress, the absence of bargaining ability,
or unconscionability; and
(5)
terminate any mediation if the physical safety of any person is endangered by
the continuation of mediation.
(c) Closure. The mediator shall cause the terms of any agreement reached to be memorialized
appropriately and discuss with the parties and counsel the process for formalization
and implementation of the agreement.
Committee
Notes
2000
Revision. In defining the role of the mediator during the course of an
opening session, a mediator should ensure that the participants fully understand
the nature of the process and the limits on the mediator's authority. See rule
10.370(c). It is also appropriate for the mediator to inform the parties that
mediators are ethically precluded from providing non-mediation services to any
party. See rule 10.340(d).
Florida
Rule of Civil Procedure 1.730(b), Florida Rule of Juvenile Procedure 8.290(o),
and Florida Family Law Rule of Procedure 12.740(f) require that any mediated
agreement be reduced to writing. Mediators have an obligation to ensure these
rules are complied with, but are not required to write the agreement themselves.
Rule
10.430 Scheduling Mediation
A
mediator shall schedule a mediation in a manner that provides adequate time
for the parties to fully exercise their right of self-determination. A mediator
shall perform mediation services in a timely fashion, avoiding delays whenever
possible.
Rule
10.500 Mediator's Responsibility to the Courts
A
mediator is accountable to the referring court with ultimate authority over
the case. Any interaction discharging this responsibility, however,
shall be conducted in a manner consistent with these ethical rules.
Committee
Notes
2000
Revision. Rules 10.500 - 10.540 include a collection of specific ethical
concerns involved in a mediator's responsibility to the courts. Incorporated
in this new section are the concepts formerly found in rule 10.040 (Responsibilities
to Courts).
Rule
10.510 Information to the Court
A
mediator shall be candid, accurate, and fully responsive to the court concerning
the mediator's qualifications, availability, and other administrative matters.
Rule
10.520 Compliance with Authority
A
mediator shall comply with all statutes, court rules, local court rules, and
administrative orders relevant to the practice of mediation.
Rule
10.530 Improper Influence
A
mediator shall refrain from any activity that has the appearance of improperly
influencing a court to secure an appointment to a case.
Committee
Notes
2000
Revision. Giving gifts to court personnel in exchange for case assignments
is improper. De minimis gifts generally
distributed as part of an overall business
development plan are excepted. See also rule 10.330.
10.600 Mediator's Responsibility to the Mediation Profession
A
mediator shall preserve the quality of the profession. A mediator is responsible
for maintaining professional competence and forthright business practices, fostering
good relationships, assisting new mediators, and generally supporting the advancement
of mediation.
Committee
Notes
2000
Revision. Rules 10.600 - 10.690 include a collection of specific ethical
concerns involving a mediator's responsibility to the mediation profession.
Incorporated in this new section are the concepts formerly found in rule
10.030 (General Standards and Qualifications), rule 10.120 (Training and Education),
rule 10.130 (Advertising), rule 10.140 (Relationships with Other Professionals),
and rule 10.150 (Advancement of Mediation).
Rule
10.610 Advertising
A
mediator shall not engage in marketing practices which contain false or misleading
information. A mediator shall ensure that any advertisements of the mediator's
qualifications, services to be rendered, or the mediation process are accurate
and honest. A mediator shall not make claims of achieving specific outcomes
or promises implying favoritism for the purpose of obtaining business.
Rule
10.620 Integrity and Impartiality
A
mediator shall not accept any engagement, provide any service, or perform any
act that would compromise the mediator's integrity or impartiality.
Rule
10.630 Professional Competence
A
mediator shall acquire and maintain professional competence in mediation. A
mediator shall regularly participate in educational activities promoting professional
growth.
Rule
10.640 Skill and Experience
A
mediator shall decline an appointment, withdraw, or request appropriate assistance
when the facts and circumstances of the case are beyond the mediator's skill
or experience.
Rule
10.650 Concurrent Standards
Other
ethical standards to which a mediator may be professionally bound are not abrogated
by these rules. In the course of performing mediation services, however, these
rules prevail over any conflicting ethical standards to which a mediator may
otherwise be bound.
Rule
10.660 Relationships with Other Mediators
A
mediator shall respect the professional relationships of another mediator.
Rule
10.670 Relationship with Other Professionals
A
mediator shall respect the role of other professional disciplines in the mediation
process and shall promote cooperation between mediators and other professionals.
Rule
10.680 Prohibited Agreements
With
the exception of an agreement conferring benefits upon retirement, a mediator
shall not restrict or limit another mediator's practice following termination
of a professional relationship.
Committee
Notes
2000
Revision. Rule 10.680 is intended to discourage covenants not to compete
or other practice restrictions arising upon the termination of a relationship
with another mediator or mediation firm. In situations where a retirement program
is being contractually funded or supported by a surviving mediator or mediation
firm, however, reasonable restraints on competition are acceptable.
Rule
10.690 Advancement of Mediation
(a) Pro Bono Service. Mediators have a responsibility
to provide competent services to persons seeking their assistance, including
those unable to pay for services. A mediator should provide mediation services
pro bono or at a reduced rate of compensation whenever appropriate.
(b) New
Mediator Training. An experienced mediator should cooperate in training
new mediators, including serving as a mentor.
(c) Support
of Mediation. A mediator should support the advancement of mediation by
encouraging and participating in research, evaluation, or other forms of professional
development and public education.
PART
III. DISCIPLINE
Rule
10.700 Scope and Purpose
These
rules apply to all proceedings before all panels and committees of the mediator
qualifications board involving the discipline or suspension of certified mediators
or non-certified mediators appointed to mediate a case pursuant to court rules.
The purpose of these rules of discipline is to provide a means for enforcing
the Florida Rules for Certified and Court-Appointed Mediators.
Rule
10.710 Privilege to Mediate
Certification
to mediate confers no vested right to the holder thereof, but is a conditional
privilege that is revocable for cause.
Rule
10.720 Definitions
(a) Board. The mediator qualifications board.
(b) Center. The Florida Dispute Resolution Center of the Office of the State Courts
Administrator.
(c) Complaint. Formal submission of an alleged violation of the Rules for Certified and
Court-Appointed Mediators, including allegations of a lack of good moral character.
A complaint may originate from any person or from the Center.
(d) Complaint
Committee. Three members of the board from the division in which a complaint
against a mediator originates.
(e) Counsel. Counsel appointed by the center, at the direction of the complaint committee,
responsible for presenting the complaint to the panel.
(f) Division. One of 3 standing divisions of the mediator qualifications board, established
on a regional basis.
(g) Investigator. A certified mediator, or attorney, or other qualified individual appointed
by the center at the direction of a complaint committee.
(h) Mediator. A person certified by the Florida Supreme Court or an individual mediating
pursuant to court order.
(i) Panel. Five members of the board from the division in which a complaint against
a mediator originates.
(j) Qualifications
Complaint Committee. Three members of the board selected for the purpose
of considering referrals pursuant to rule 10.800.
Rule
10.730 Mediator Qualifications Board
(a) Generally. The mediator qualifications board shall be composed of 3 standing divisions
that shall be located in the following regions:
(1) One
division in north Florida, encompassing the First, Second, Third, Fourth, Eighth,
and Fourteenth judicial circuits;
(2) One
division in central Florida, encompassing the Fifth, Sixth, Seventh, Ninth,
Tenth, Twelfth, Thirteenth, and Eighteenth judicial circuits;
(3) One
division in south Florida, encompassing the Eleventh, Fifteenth, Sixteenth,
Seventeenth, Nineteenth, and Twentieth judicial circuits.
Other
divisions may be formed by the supreme court based on need.
(b) Composition
of Divisions. Each division of the board shall be composed of:
(1) three
circuit or county judges;
(2) three
certified county mediators;
(3) three
certified circuit mediators;
(4) three
certified family mediators, at least 2 of whom shall be non-lawyers;
(5) not
less than 1 nor more than 3 certified dependency mediators; and
(6) three
attorneys licensed to practice law in Florida who have a substantial trial practice
and are neither certified as mediators nor judicial officers during their terms
of service on the board, at least 1 of whom shall have a substantial dissolution
of marriage law practice.
(c) Appointment;
Terms. Eligible persons shall be appointed to the board by the chief justice
of the Supreme Court of Florida for a period of 4 years. The terms of the board
members shall be staggered.
(d) Complaint
Committee. Each complaint committee of the board shall be composed of
3 members. A complaint committee shall cease to exist after disposing of all
assigned cases. Each complaint committee shall be composed of:
(1) one
judge or attorney, who shall act as the chair of the committee;
(2) one
mediator, who is certified in the area to which the complaint refers; and
(3) one
other certified mediator.
(e) Qualifications
Complaint Committee. One member of each division shall serve as a member
of the qualifications complaint committee for a period of 1 year. The qualifications
complaint committee shall be composed of:
(1) one
judge or attorney, who shall act as the chair of the committee; and
(2) two
certified mediators.
(f) Panels. Each panel of the board shall be composed of 5 members. A panel
shall cease to exist after disposing of all assigned cases. Each panel
shall be composed of:
(1) one
circuit or county judge, who shall serve as the chair;
(2) three
certified mediators, at least 1 of whom shall be certified in the area to which
the complaint refers; and
(3) one
attorney.
(g) Panel
Vice-Chair. Each panel once appointed shall elect a vice-chair. The vice-chair
shall act as the chair of the panel in the absence of the chair.
Committee
Notes
2000
Revision. In relation to (b)(5), the Committee believes that the Chief
Justice should have discretion in the number of dependency mediators appointed
to the Board depending on the number of certified dependency mediators available
for appointment. It is the intention of the Committee that when dependency mediation
reaches a comparable level of activity to the other three areas of certification,
the full complement of three representatives per division should be realized.
Rule
10.740 Jurisdiction
(a) Complaint
Committee. Each complaint committee shall have such jurisdiction and powers
as are necessary to conduct the proper and speedy investigation and disposition
of any complaint. The judge or attorney presiding over the complaint committee
shall have the power to compel the attendance of witnesses, to take or to cause
to be taken the depositions of witnesses, and to order the production of records
or other documentary evidence, and the power of contempt. The complaint committee
shall perform its investigatory function and have concomitant power to resolve
cases prior to panel referral.
(b) Qualifications
Complaint Committee. The qualifications complaint committee shall have
jurisdiction over all matters referred pursuant to rule 10.800. The qualifications
complaint committee shall have such jurisdiction and powers as are necessary
to conduct the proper and speedy investigation and disposition of any good moral
character complaint or other matter referred by the Center. The judge or attorney
presiding over the qualifications complaint committee shall have the power to
compel the attendance of witnesses, to take or to cause to be taken the depositions
of witnesses, and to order the production of records or other documentary evidence,
and the power of contempt. The qualifications complaint committee shall perform
its investigatory function and have concomitant power to resolve cases prior
to panel referral.
(c) Panel. Each panel shall have such jurisdiction and powers as are necessary to
conduct the proper and speedy adjudication and disposition of any proceeding.
The judge presiding over each panel shall have the power to compel the
attendance of witnesses, to take or to cause to be taken the depositions of
witnesses, to order the production of records or other documentary evidence,
and the power of contempt. The panel shall perform the adjudicatory function,
but shall not have any investigatory functions.
(d) Contempt. Should any witness fail, without justification, to respond to the lawful
subpoena of the complaint committee, the qualifications complaint committee,
or the panel or, having responded, fail or refuse to answer all inquiries or
to turn over evidence that has been lawfully subpoenaed, or should any person
be guilty of disorderly or contemptuous conduct before any proceeding of the
complaint committee, the qualifications complaint committee, or the panel, a
motion may be filed by the complaint committee, the qualifications complaint
committee, or the panel before the circuit court of the county in which the
contemptuous act was committed. The motion shall allege the specific failure
on the part of the witness or the specific disorderly or contemptuous act of
the person which forms the basis of the alleged contempt of the complaint committee,
the qualifications complaint committee, or the panel. Such motion shall pray
for the issuance of an order to show cause before the circuit court why the
circuit court should not find the person in contempt of the complaint committee,
the qualifications complaint committee, or the panel and the person should not
be punished by the court therefor. The circuit court shall issue such orders
and judgments therein as the court deems appropriate.
Rule
10.750 Staff
The
center shall provide all staff support to the board necessary to fulfill its
duties and responsibilities under these rules.
Rule
10.800 Good Moral Character; Professional Discipline
(a)
Good Moral Character.
(1) Prior
to approving an applicant for certification or renewal as a mediator the Center
shall review the application to determine whether the applicant appears
to meet the standards for good moral character. If the Center's review of an
application for certification or renewal raises any questions regarding the
applicant's good moral character, the Center shall request the applicant to
supply additional information as necessary. Upon completing this extended review,
the Center shall forward the application and supporting material as a complaint
to the qualifications complaint committee.
(2) If
the Center becomes aware of any information concerning a certified mediator
which could constitute credible evidence of a lack of good moral character,
the Center shall refer such information as a complaint to the qualifications
complaint committee.
(3) The
qualifications complaint committee shall review all documentation relating to
the good moral character of any applicant or certified mediator in a manner
consistent, insofar as applicable, with rule 10.810. In relation to an
applicant, the qualifications complaint committee shall either recommend approval
or, if it finds there is probable cause to believe that the applicant lacks
good moral character, it shall refer the matter to a hearing panel for further
action. In relation to a certified mediator, the qualifications complaint committee
shall dismiss or, if there is probable cause to believe that the mediator lacks
good moral character, refer the matter to a hearing panel for further action.
(4) The
panel shall take appropriate action on the issue of good moral character by
dismissing the charges, denying the application in relation to an applicant,
or imposing sanctions against a certified mediator pursuant to rule 10.830.
(5) All
such hearings shall be held in a manner consistent, insofar as applicable, with
rule 10.820.
(b) Professional
Discipline. Upon becoming aware that a certified mediator has been disciplined
by a professional organization of which that mediator is a member, the Center
shall refer the matter to the qualifications complaint committee.
Rule
10.810 Committee Process
(a) Initiation
of Complaint. Any individual wishing to make a complaint alleging that
a mediator has violated one or more provisions of these rules shall do so in
writing under oath. The complaint shall state with particularity the specific
facts that form the basis of the complaint.
(b) Filing. The complaint shall be filed with the center, or, in the alternative,
the complaint may be filed in the office of the court administrator in the circuit
in which the case originated or, if not case specific, in the circuit where
the alleged misconduct occurred.
(c) Referral. The complaint, if filed in the office of the court administrator, shall
be referred to the center within 5 days of filing.
(d) Assignment
to Committee. Upon receipt of a complaint in proper form, the center shall
assign the complaint to a complaint committee or the qualifications complaint
committee within 10 days.
(e) Facial
Sufficiency Determination. The complaint committee or the qualifications
complaint committee shall convene, either in person or by conference call, to
determine whether the allegation(s), if true, would constitute a violation of
these rules. If the committee finds a complaint against a certified mediator
to be facially insufficient, the complaint shall be dismissed without prejudice
and the complainant and the mediator shall be so notified. If the qualifications
complaint committee finds a complaint against an applicant to be facially insufficient,
the complaint shall be dismissed and the application approved if all other requirements
are met. If the complaint is found to be facially sufficient, the committee
shall prepare a list of any rule or rules which may have been violated and shall
submit such to the center.
(f) Service. The center shall send a copy of the list of rule violations prepared by
the committee, a copy of the complaint, and a copy of these rules to the mediator
or applicant in question. Service on the mediator or applicant shall be made
by registered or certified mail addressed to the mediator or applicant at the
mediator's or applicant's place of business or residence.
(g) Response. Within 20 days of the receipt of the list of violations prepared by the
committee and the complaint, the mediator or applicant shall send a written,
sworn response to the center by registered or certified mail. If the mediator
or applicant does not respond, the allegations shall be deemed admitted.
(h) Preliminary
Review. Upon review of the complaint and the mediator's or applicant's
response, the committee may find that no violation has occurred and dismiss
the complaint. The committee may also resolve the issue pursuant to subdivision
(j) of this rule.
(i) Appointment
of Investigator. The committee, after review of the complaint and response,
may direct the center to appoint an investigator to assist the committee in
any of its functions. Such person shall investigate the complaint and advise
the committee when it meets to determine the existence of probable cause. In
the alternative to appointing an investigator, the committee or any member or
members thereof may investigate the allegations, if so directed by the committee
chair. Such investigation may include meeting with the mediator, the applicant
and the complainant.
(j) Committee
Meeting with the Mediator or Applicant. Notwithstanding any other provision
in this rule, at any time while the committee has jurisdiction, it may meet
with the complainant and the mediator or applicant in an effort to resolve the
matter. This resolution may include sanctions if agreed to by the mediator or
applicant. If sanctions are accepted, all relevant documentation shall be forwarded
to the center.
(k) Review. If no other disposition has occurred, the committee shall review the complaint,
the response, and any investigative report, including any underlying documentation,
to determine whether there is probable cause to believe that the alleged misconduct
occurred and would constitute a violation of the rules.
(l) No
Probable Cause. If the committee finds no probable cause, it shall dismiss
the complaint and so advise the complainant and the mediator or applicant in
writing.
(m) Probable
Cause Found. If probable cause exists, the committee may draft formal
charges and forward such charges to the center for assignment to a panel. In
the alternative, the committee may decide not to pursue the case by filing a
short and plain statement of the reason(s) for non-referral and so advise the
complainant and the mediator or applicant in writing.
(n) Formal
Charges and Counsel. If the committee refers a complaint to the center,
the committee shall submit to the center formal charges which shall include
a short and plain statement of the matters asserted in the complaint and references
to the particular sections of the rules involved. After considering the circumstances
of the complaint and the complexity of the issues to be heard, the committee
may direct the center to appoint a member of The Florida Bar to investigate
and prosecute the complaint. Such counsel may be the investigator appointed
pursuant to this rule if such person is otherwise qualified.
(o) Dismissal. Upon the filing of a stipulation of dismissal signed by the complainant
and the mediator with the concurrence of the complaint committee, the action
shall be dismissed. If an application is withdrawn by the applicant, the complaint
shall be dismissed with or without prejudice depending on the circumstances.
Rule
10.820 Hearing Procedures
(a) Assignment
to Panel. Upon referral of a complaint and formal charges from a committee,
the center shall assign the complaint and formal charges or other matter to
a panel for hearing, with notice of assignment to the complainant and the mediator
or applicant. No member of the committee shall serve as a member of the panel.
(b) Hearing. The center shall schedule a hearing not more than 90 days nor less than
30 days from the date of notice of assignment of the matter to the panel.
(c) Dismissal. Upon the filing of a stipulation of dismissal signed by the complainant
and the mediator, and with the concurrence of the panel, a complaint shall be
dismissed.
(d) Procedures
for Hearing. The procedures for hearing shall be as follows:
(1) No
hearing shall be conducted without 5 panel members being present.
(2) The
hearing may be conducted informally but with decorum.
(3) The
rules of evidence applicable to trial of civil actions apply but are to be liberally
construed.
(4) Upon
a showing of good cause to the panel, testimony of any party or witness may
be presented over the telephone.
(e) Right
to Defend. A mediator or applicant shall have the right to defend against
all charges and shall have the right to be represented by an attorney, to examine
and cross-examine witnesses, to compel the attendance of witnesses to testify,
and to compel the production of documents and other evidentiary matter through
the subpoena power of the panel.
(f) Mediator
or Applicant Discovery. The center shall, upon written demand of a mediator,
applicant, or counsel of record, promptly furnish the following: the names and
addresses of all witnesses whose testimony is expected to be offered at the
hearing, together with copies of all written statements and transcripts of the
testimony of such witnesses in the possession of the counsel or the center which
are relevant to the su | 
